California Court of Appeals, Second District, Fourth Division
PROGRESSIVE CHOICE INSURANCE COMPANY, Plaintiff and Respondent,
CALIFORNIA STATE AUTOMOBILE ASSOCIATION INTER-INSURANCE BUREAU, Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC472603 Maureen Duffy-Lewis, Judge.
Morton & Lulofs and William R. Morton for Defendant and Appellant.
Yocis & Cox and Stephen M. Smith for Plaintiff and Respondent.
This case concerns the allocation of an Underinsured Motorist (UIM) loss between two automobile insurance companies. The insured was covered by automobile insurance policies issued by Progressive Choice Insurance Company (Progressive) and California State Automobile Association Inter-Insurance Bureau (CSAA). He was injured in an automobile accident caused by an underinsured motorist. After settling with the underinsured motorist, the insured claimed a $62, 500 loss under the UIM provisions of both policies. Progressive paid the entire claim, and sought contribution from CSAA. Progressive contended that under Insurance Code section 11580.2, subdivision (d),  the UIM loss should be allocated on a pro-rata basis between the two companies. The trial court agreed, and granted summary judgment in favor of Progressive. CSAA contends the trial court erred, as under section 11580.2, subdivision (c)(2), its policy does not apply because the insured was covered by the Progressive policy; thus, the entire loss should be borne by Progressive. On appeal, Progressive contends CSAA may not rely on section 11580.2, subdivision (c)(2) because the CSAA policy lacked the necessary language to invoke that statutory exclusion. We agree. Absent such statutory exclusion, both insurance policies are implicated, and the mandatory pro-rata allocation of section 11580.2, subdivision (d) applies. Accordingly, we affirm the grant of summary judgment in favor of Progressive.
STATEMENT OF THE FACTS
The parties stipulated to the following facts.
A. Underlying Claims
On March 27, 2006, Benjamin White was injured in a traffic collision, while riding as a passenger in a vehicle being operated by Scott A. Tortora. The party who caused the collision was underinsured. White was insured under two automobile insurance policies. The first policy, issued by Progressive to Tortora, insured the vehicle. It provided underinsured motorist bodily injury coverage with limits of $100, 000 for each person. The second policy, issued by CSAA to Benjamin White as the named insured, provided underinsured motorist bodily injury coverage with limits of $50, 000 for each person.
White settled with the at-fault driver’s automobile insurance company for the policy limit of $25, 000. White then made a claim for Underinsured Motorist benefits under the Progressive and CSAA policies. CSAA denied coverage. Progressive paid the sum of $62, 500 to White. Progressive demanded that CSAA reimburse Progressive $20, 833.33, the pro-rata share of the payment made to White based upon the applicable policy limits of the two policies. CSAA denied any obligation to contribute and reimburse Progressive, arguing that the Progressive policy constituted the sole source of underinsured motorist coverage to White.
B. Progressive Insurance Policy
The Progressive insurance policy provided underinsured motorist coverage under Part III (A) of the policy. It provided: “Subject to the Limits of Liability, if you pay a premium for Uninsured/Underinsured Motorist Bodily Injury Coverage, we will pay for damages, other than punitive or exemplary damages, which an insured person is entitled to recover from the owner or operator of an uninsured motor vehicle or underinsured motor vehicle because of bodily injury: [¶] 1. sustained by an insured person; [¶] 2. caused by accident; and [¶] 3. arising out of the ownership, maintenance, or use of an uninsured motor vehicle or underinsured motor vehicle.”
Under “Exclusions, ” the policy stated that “Coverage under this Part III(A) is not provided for bodily injury sustained by any person while using or occupying:... [¶]... [¶] 6. a motor vehicle, other than a covered vehicle, if the owner has insurance similar to that provided under this Part III(A).”
Part III(A) also included an “Other Insurance” provision. That provision stated: “If there is other applicable uninsured or underinsured motorist coverage, the damages which an insured person is entitled to recover under this Part III(A) shall be deemed not to exceed the highest limit of any applicable coverage. We will pay only our share of the damages. Our share is the proportion that our Limit of Liability bears to the total of all available coverage limits. Any insurance we provide shall be excess over any other uninsured or underinsured motorist coverage, except for bodily injury to you or a relative when occupying a covered vehicle.”
C. CSAA Insurance Policy
The CSAA insurance policy provided underinsured motorist coverage under Part IV of the policy. Under “Coverage, ” the policy provided: “We will pay damages, other than punitive or exemplary damages, for bodily injury which an insured person is legally entitled to recover from the owner or operator of an uninsured motor vehicle. The bodily injury must be caused by accident and arise out of the ownership, maintenance or use of the uninsured motor vehicle.”
The policy enumerated several exclusions from coverage. It provided: “This coverage does not apply to bodily ...